Urban v. State
Decision Date | 18 November 1965 |
Docket Number | 7 Div. 556 |
Citation | 180 So.2d 910,279 Ala. 8 |
Parties | Josephine Hughes URBAN v. STATE of Alabama. |
Court | Alabama Supreme Court |
Markstein & Cain, Birmingham, for appellant.
Maurice F. Bishop, Birmingham, and Handy & Stivender, Gadsden, for appellee.
The State of Alabama filed in the Probate Court of Etowah County a petition for condemnation of several tracts of land. The petition showed that Josephine Hughes Urban and several other persons owned or claimed to own some right, title or interest in one of the tracts.
The Probate Court granted the petition and appointed commissioners. They reported, assessing damages to Mrs. Urban and others at $33,283. An order of condemnation followed.
The State of Alabama appealed to the Circuit Court of Etowah County, where a judgment was rendered on a jury verdict awarding the landowners compensation in the amount of $6,201. The property owners filed a motion for a new trial, which was later overruled and denied.
Josephine Hughes Urban alone has appealed to this court.
The cause was submitted here on motion and merits.
The State has moved that the appeal be dismissed on the ground, among others, that 'no notice or citation has been served on any of the other party respondents [landowners], none of whom are parties to this appeal.'
Section 804, Title 7, Code 1940, reads in pertinent parts as follows:
'Any party against whom a judgment or decree is rendered, may individually appeal to the supreme court or court of appeals without taking the appeal in the name of the other codefendant, but the clerk or register of the court from which the appeal is taken, shall issue a summons when the appeal is so taken, to such as do not join in the appeal to appear before the supreme court or court of appeals at the time to which the appeal is returnable, and unite in said appeal if he see proper, which summons may be served upon the party, or his attorney of record in the lower court. * * *'
The appellant, Josephine Hughes Urban, does not contend that any of the other persons interested in the tract of land who were parties to the proceedings in the circuit court were summoned in the manner provided by § 804, Title 7, supra; or that any of them signed the appeal bond as principals (Smith v. Collier, 210 Ala. 23, 97 So. 101); or that any of them has appeared in this court in such a manner as to constitute a waiver of summons or other notice. Cosby v. Moore, 259 Ala. 41, 65 So.2d 178; Shaddix v. Wilson, 261 Ala. 191, 73 So.2d 751.
It is appellant's insistence that the provisions of § 804, Title 7, supra, have no application inasmuch as her appeal was taken under the provisions of § 23, Title 19, Code 1940, which authorizes 'any party' to appeal to this court from a final judgment of the circuit court in condemnation proceedings.
The exact question here presented does not appear to have been decided by this court, but an analogous procedural question relating to appeals from the order of condemnation in the probate court to the circuit court has been presented to and determined by this court.
In Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920, we said in part as follows:
* * *'(261 Ala. 83, 72 So.2d 926.)
The rule in the Williams case was modified by this court in Harris v. Mobile Housing Board, 267 Ala. 147, 100 So.2d 719. In that case, the Housing Board filed an application for condemnation against Mary M. Harris and fourteen other persons who were alleged to own some right, title or interest in one of the tracts. Mary M. Harris appealed from the order of condemnation entered in the Probate Court to the Circuit Court of Mobile County in her own name, but not in the name of the other fourteen defendants. On motion, the circuit court followed our holding in the Williams case, supra, and dismissed the appeal. Mary M. Harris then appealed to this court. We reversed on the ground that we were wrong in the Williams case, supra, in holding that an appeal to the circuit court from an order of condemnation entered in the probate court must be taken to the circuit court in the name of all the parties claiming an interest in the tract condemned. However,...
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Mims v. Mississippi Power Co.
...and a summons was issued by the Clerk of the Circuit Court to those persons, as required by § 804, Title 7, Code 1940. See Urban v. State, 279 Ala. 8, 180 So.2d 910. None of those persons have appeared before this court and united in the Although an appeal was taken from the judgment granti......
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Kelley v. Housing Authority of City of Bay Minette, Baldwin County, 1 Div. 734
...cause service of notice to be made when service has not been perfected as hereinabove outlines.' Harris, supra; Urban v. State, 279 Ala. 8, 180 So.2d 910 (1965), cert. den. 385 U.S. 972, 87 S.Ct. 510, 17 L.Ed.2d Thus, it results that the final decree denying appellant the relief sought must......